A retired Philadelphia Common Pleas Court judge has been sued by his former brother-in-law for allegedly using judicial influence to have the man fired as a tipstaff and then allegedly falsely charged with forgery.
Former Judge John J. Chiovero and other co-defendants filed a motion to dismiss the action for lack of jurisdiction in federal court last week, and the lawyer for Ralph DiFronzo, the former brother-in-law, said his client plans to file an amended complaint this week that would drop two of the defendants and a civil rights claim in hopes of maintaining federal jurisdiction.
In his complaint in DiFronzo v. Chiovero, DiFronzo said he was targeted by Chiovero after he announced he was divorcing the judge's sister, Marietta Crimi. Crimi and her daughter Jennifer Crimi McCloud were named as defendants in the case, but will be dropped from the suit in the amended complaint, according to DiFronzo's attorney, Philadelphia sole practitioner Brian E. Appel.
In their motion to dismiss, Chiovero, Crimi and Crimi McCloud "vehemently denied" all of the allegations.
"The instant action is a patently frivolous lawsuit that has no place in the federal courts, or any court for that matter," according to the motion filed by the defendants' attorney, Walter J. McHugh of McMonagle Perri McHugh & Mischak.
He asked that DiFronzo and his lawyer be ordered to pay all of the defendants' attorney fees "in defending this baseless lawsuit."
According to the complaint, DiFronzo had worked in Chiovero's chambers as a tipstaff from 1996 through December 2003. His employment included disclosure by Chiovero of personal finance matters and gave DiFronzo the authority to make directed financial transactions with certain checks, according to the complaint.
In May 2003, DiFronzo informed Chiovero of his plans to divorce Marietta Crimi, who he had told of the plans the day before. According to the complaint, the judge immediately advised DiFronzo that he was terminated from his chambers and should report to the office that administered the pool of unassigned tipstaffs.
Chiovero argued in his motion to dismiss that he had DiFronzo reassigned to avoid any conflict of interest or impropriety.
For the next year and a half, DiFronzo worked for several different chambers through the pool of unassigned tipstaffs. On Jan. 28, 2005, he was notified by court administration that he was fired. The reason given, according to the complaint, was that he had put false and misleading information on his employment application concerning prior criminal convictions.
DiFronzo argued that he disclosed the conviction in the application and to Chiovero.
"The termination of employment was the direct and proximate result of misleading statements and influence, asserted with malicious intent, by John J. Chiovero, as part of his personal scheme, and his conspiracy with the co-defendants, to bring financial, emotional and reputation harm to Ralph DiFronzo," the complaint alleged.
In the defense motion, the defendants pointed out that it was the Philadelphia Common Pleas Court administration that fired DiFronzo, not Chiovero.
In March 2006, DiFronzo said in the complaint, Chiovero used his influence and "caused a criminal complaint to be initiated" against DiFronzo.
The criminal complaint filed with the FBI said DiFronzo had misappropriated "a large amount of money" by forging checks that were payable to Chiovero, Crimi and her daughter, according to DiFronzo's complaint.
In August 2006, DiFronzo surrendered himself to the Philadelphia district attorney's office after he received a call that a warrant was issued for his arrest. He was released on his own recognizance after spending two nights in jail, according to the complaint.
"Chiovero knew or had reason to know that his long-standing and respected position as a judge of Court of Common Pleas would cause key people with authority in the criminal justice system to give vigorous, unquestioning support to the pursuit of his claims against DiFronzo," the complaint stated.
The case was bound over for trial, and a Bucks County judge sitting by special assignment for the case ordered the prosecution witnesses and DiFronzo to submit handwriting samples to the FBI for evaluation, according to the complaint.
The handwriting examiner determined "several" of the signatures alleged to have been forged were, in fact, the signatures of Chiovero, Crimi and her daughter, according to the complaint. In November 2007, court papers said, the district attorney's office made an "ex parte application for nolle prosequi" of all 42 counts of the complaint against DiFronzo. That application, according to DiFronzo's complaint, was granted by Philadelphia Common Pleas Court President Judge C. Darnell Jones II. DiFronzo was notified of the dismissal in January 2008.
In his complaint, DiFronzo is alleging claims of violation of civil rights, false imprisonment, malicious prosecution, intentional infliction of emotional distress, wrongful termination and civil conspiracy. The case was filed in the U.S. District Court for the Eastern District of Pennsylvania.
In their motion to dismiss, the defendants argued federal question jurisdiction is not available in this case because there is no proof that any of the alleged improper actions by Chiovero were performed while he was acting in his role as a judge. DiFronzo and two of the three defendants are residents of New Jersey, furthering the argument that federal question jurisdiction doesn't exist, the motion stated.
The defendants also argued that a civil rights claim needs to be a substantial element of a case to meet requirements for federal jurisdiction and that such a violation can only be committed by a governmental actor.
"The fact that defendant Judge Chiovero was a public official does not transform these state law claims into a civil rights action, especially where the plaintiff himself alleges that the actions were undertaken for personal reasons," the defendants stated in the motion.
Appel told The Legal Intelligencer that dropping Crimi and Crimi McCloud from the suit along with the civil rights claim should allow the case to remain in federal court because DiFronzo and Chiovero live in different states. DiFronzo resides in New Jersey and Chiovero in Pennsylvania.
The defendants argued in their motion that DiFronzo's claim was based on the pressing of criminal charges which would amount to the state claim of malicious prosecution.
"However, this (allegedly) malicious prosecution was not a case of filing a civil complaint for which anyone has direct access to the courts," the motion stated. "This claim of malicious prosecution is based upon bringing criminal charges that had to be vetted by numerous persons and agencies."
As to the filing of criminal charges against DiFronzo, the defendants argued in the motion that there was no assertion that Chiovero acted in his official capacity, but that public officials gave more credence to the criminal complaint because it had been initiated by a judge.
Further supporting the defense argument, according to the motion, is the fact that Chiovero was not involved in the arraignment or preliminary hearing and a judge was brought in from another county to preside over the hearings.
When it comes to the claim for false imprisonment, the defendants argued DiFronzo should have sued the Philadelphia district attorney's office or the Philadelphia prison system. In a similar argument, the defendants said the wrongful termination claim could not have been brought against the defendants because they did not fire DiFronzo.
Fortunato Perri of McMonagle Perri told The Legal that he and his clients "categorically deny" all of the allegations made in the complaint. He said Chiovero has been a well-respected member of the judiciary for decades.
Chiovero resigned from the bench in December 2007, at which point he was a senior judge in the court's criminal division.